EQUAL MEANS EQUAL; THE YELLOW ROSES; KATHERINE WEITBRECHT v. DAVID FERRIERO, in his official capacity as Archivist of the United States
No. 20-1802
United States Court of Appeals For the First Circuit
June 29, 2021
BARRON, Circuit Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise Jefferson Casper, U.S. District Judge]
Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.
Wendy J. Murphy and Alison Shea, with whom Women‘s and Children‘s Advocacy Project was on brief, for appellants.
Arlaine Rockey on brief for Real Estate Advisors Group et al., amici curiae.
Thomas Pulham, Attorney, Appellate Staff, Civil Division, with whom Brian M. Boynton, Acting Assistant Attorney General, Andrew E. Lelling, United States Attorney, and Michael S. Raab, Attorney, Appellate Staff, Civil Division, were on brief, for appellee.
Jennifer C. Braceras and Independent Women‘s Law Center on brief for Independent Women‘s Law Center, amicus curiae.
I.
The plaintiffs include two organizations, Equal Means Equal and The Yellow Roses, as well as an individual, Katherine Weitbrecht (“Weitbrecht“). Equal Means Equal is a national nonprofit organization that is dedicated to advocating for women‘s equality and for the ratification of the Equal Rights Amendment (“ERA“). The Yellow Roses is a student organization based in Massachusetts whose “sole mission is to advocate for and raise public awareness about [the] ratification of the ERA.” Weitbrecht is a female resident of Massachusetts.
The plaintiffs commenced this action on January 7, 2020, when they filed a complaint that named as the defendant David S. Ferriero, in his official capacity as Archivist of the United States. They filed their amended complaint against the samе defendant on February 29, 2020.
The operative complaint alleges that the Archivist violated
[w]henever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adoрted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has
become valid, to all intents and purposes, as a part of the Constitution of the United States.
The complaint alleges that the Archivist‘s refusal to publish the ERA violated
In support of these contentions, the complaint alleges that both the seven-year ratification deadline that Congress sought to impose on the states when it first proposed the ERA in 1972, see H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972), and Congress‘s subsequent extension of that deadline to 1982, see H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978), violate
The plaintiffs request, among other things, an order declaring that the ERA is the Twenty-Eighth Amendment to the United States Constitution and аn order mandating that the Archivist record the ratifications by all thirty-eight states, including Virginia. The plaintiffs also seek an order enjoining the Archivist from removing any previously recorded ratifications.
The Archivist moved to dismiss the plaintiffs’ claims for lack of subject matter jurisdiction, see
II.
Article III limits the judicial power to actual cases and controversies. See
“To satisfy the personal stake requirement, [the] plaintiff must establish
The plaintiffs first contend that the District Court erred in dismissing their suit on Article III grounds insofar as the individual members of Equal Means Equal and The Yellow Roses are “all female.” They contend in that regard that such members “have a protectable legal interest” in “the ERA‘s vitality” on which the Archivist inflicted “catastrophic harm” by not publishing the ERA, because the Archivist‘s failure to do so “has made it more difficult for them to obtain the benefits of the ERA‘s presumptive validity.” They further allege that in consequence of the Archivist‘s failure to publish the ERA, Massachusetts continues not to protect women against “sex-based violence” under its hate crime laws and that they are accordingly at risk of violent attack from which they otherwise would be protected.
We may assume that the complaint may be read to assert standing on this member-grounded basis, because we agree with the District Court, see Equal Means Equal, 478 F. Supp. 3d at 115, that, even on that reading, the complaint‘s allegations regarding women‘s alleged risk of harm and the defendant‘s allegedly unlawful conduct do not suffice to satisfy their pleading obligation at this stage of the litigation with respect to standing. For, as concrete as the harm from an assault surely is, the plaintiffs are seeking rеlief from the conduct of a defendant who stands well removed from the person who would directly inflict that harm. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021); Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 414 n.5 (2013); see also Pub. Citizen, Inc. v. Nat‘l Highway Traffic Safety Admin., 489 F.3d 1279, 1291, 1296 (D.C. Cir. 2007) (Kavanaugh, J.) (noting that plaintiffs “must demonstrate [either a] ‘substantial probability’ that [the challenged] action caused [them] harm” or both (1) that the challenged “action causes [them] to face an increase in the risk of harm that is ‘substantial,’ and [(2) that] the ultimate risk of harm also is ‘substantial‘” (first quoting Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 663, 666 (D.C. Cir. 1996) (en banc); and then citing Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1235 (D.C. Cir. 1996))).
Nor are we persuaded by the plaintiffs’ contention that the decisions by the Supreme Court of the United States in Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993), and Grutter v. Bollinger, 539 U.S. 306 (2003), or by our Court in Carson ex rel. O.C. v. Makin, 979 F.3d 21 (1st Cir. 2020), show otherwise. In the first two cases, the Supreme Court held, respectively, that an organization whose members alleged that they would seek city contracts had standing to challenge the city‘s race-based criteria for awarding them, see Ne. Fla. Chapter, 508 U.S. at 666, and that a student who had applied for and been denied admission to the University of Michigan Law School had standing to challenge the sсhool‘s admissions criteria, see Grutter, 539 U.S. at 316-17. As for the case from our Circuit, we held that parents who alleged that they would use state-authorized tuition assistance to send their children to pervasively sectarian schools had standing to challenge a state law barring them from using that assistance to do so. See Carson, 979 F.3d at 32.
Equal Means Equal and The Yellоw Roses do not purport to premise their standing here on any benefit that has been denied to them by the challenged actions of the defendant in the way in which the plaintiffs in those three cases did. They instead premise their standing on the risk of harm that they contend they face because of the Archivist‘s failure to publish the ERA. Thus, those precedents fail to support the conclusion that the plaintiffs plausibly assert the requisites for standing.
The plaintiffs do also argue that at least Weitbrecht has met her burden at this stage of the litigation to show that she has standing under Article III. They point to the complaint‘s allegation that Weitbrecht was the victim of a prior act of privаte sex-based violence that was criminally prosecuted, but not as a hate crime. And they point to statistics set forth in the complaint that assert, among other things, that college women and other women generally, though not Weitbrecht specifically, are at an increased risk of suffering sex-based violence and other hаrms, relative to other persons. But, neither these aspects of the complaint nor any other purport to address how any causal link between the risk of such harm that Weitbrecht in particular faces and the Archivist‘s failure to publish the ERA differs from the causal link between the risk of such harm that the organizations’ members generally face as women and that failure. The complaint thus fails plausibly to allege standing as to Weitbrecht just as it fails to do as to those members more generally.
From our conclusions thus far it follows that we must also reject the contention that Equal Means Equal presses to us that it has what is known as associational standing.3 After all, to have standing on that basis, Equal Means Equal must show that at least one of its members has standing in her own right. See Council of Ins. Agents & Brokers v. Juarbe-Jimenez, 443 F.3d 103, 108 (1st Cir. 2006) (noting that an organization has associational standing to sue on behalf of its members only if “its members would . . . have standing to sue in their own right” (quoting Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343 (1977))).
That brings us, then, to the contentions by Equal Means Equal and The Yellow Roses that each has standing on its own as an organization due to the injury that, the complaint alleges, each has suffered in that capacity from the actions of the Archivist. The organizations contend that this is so because, as the complaint alleges, each
But, an organization cannot establish standing if the “only injury arises from the effect of [a challenged action] on the organizations’ lobbying activities, or when the service impaired is pure issue-advocacy.” People for the Ethical Trеatment of Animals v. U.S. Dep‘t of Agric., 797 F.3d 1087, 1093-94 (D.C. Cir. 2015) (citations and internal quotation marks omitted). “Otherwise, the implication would be that any individual or organization wishing to be involved in a lawsuit could create a[n organization] for the purpose of conferring standing, or could adopt [a mission] so that the [organization] expressed an interest in the subjeсt matter of the case, and then spend its way into having standing.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 288 (3d Cir. 2014); see also Ctr. for L. & Educ. v. Dep‘t of Educ., 396 F.3d 1152, 1162 n.4 (D.C. Cir. 2005) (“In Sierra Club [v. Morton, 405 U.S. 727, 739 (1972)], the Supreme Court recognized that to hold that a lobbyist/advocacy group had standing to challenge government policy with no injury other than injury to its advocacy would eviscerate standing doctrine‘s actual injury requirement . . . .“).
The organizations do contend that Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), supports their bid for organizational standing, notwithstanding thе caselaw just described. But, the fair housing organization there provided counseling and other referral services to those seeking affordable housing, and it was found to have Article III standing in bringing suit under
The plaintiff organizations here seek standing bаsed only on quite different allegations from those found to have sufficed to support organizational standing in Havens. They premise their standing on the allegation that the defendant‘s unlawful conduct in not complying with
III.
The federal constitutional questions that the plaintiffs’ complaint raises concerning the legal status of the ERA are significant. To be fit for adjudication in federal court, however, they must be raised in a suit that satisfies the requirements of Article III. Because we agree with the District Court that the plaintiffs have not met their burden at the pleading stage with respect to those federal constitutional requirements, we affirm the order dismissing their suit for lack of standing.
Notes
The text of that provision reads:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Sec. 3. This amendment shall take effect two years after the date of ratification.
H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972).